[ v04 p8 ]
04:0008(2)NG
The decision of the Authority follows:
04 FLRA No. 2 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CI0, LOCAL 1331 (Union) and DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION ADMINISTRATION, EASTERN REGIONAL RESEARCH CENTER, PHILADELPHIA, PENNSYLVANIA (Activity) Case No. 0-NG-175 DECISION ON NEGOTIABILITY ISSUE THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET SEQ.). UNION PROPOSAL RESEARCH MANUSCRIPTS THIS IS A MULTIPART AND DETAILED PROPOSAL WHICH ESTABLISHES HOW THE ACTIVITY'S RESEARCH MANUSCRIPTS ARE TO BE PRODUCED. (THE PROPOSAL IS SET FORTH IN ITS ENTIRETY IN APPENDIX A.) QUESTION HERE BEFORE THE AUTHORITY THE QUESTION IS WHETHER THE UNION'S PROPOSAL VIOLATES THE AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE, AS ALLEGED BY THE AGENCY. /1/ OPINION CONCLUSION: THE UNION'S PROPOSAL VIOLATES THE AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10), THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED. IN REACHING ITS DECISION, THE AUTHORITY, IN ACCORDANCE WITH SECTION 2424.8 OF THE AUTHORITY'S REGULATIONS, DID NOT CONSIDER THE ADDITIONAL STATEMENT OF POSITION FILED BY THE AGENCY, WITHOUT APPROVAL, SUBSEQUENT TO THE UNION'S RESPONSE TO THE ORIGINAL AGENCY STATEMENT. REASONS: ACCORDING TO THE RECORD IN THE CASE, THE ACTIVITY IS RESPONSIBLE FOR DEVELOPING NEW AND IMPROVED USES AND TECHNIQUES FOR THE PROCESSING AND HANDLING OF FOOD AND FIBRE PRODUCTS. IN THIS REGARD, THE PREPARATION AND PUBLICATION OF RESEARCH MANUSCRIPTS IS THE PRIMARY MEANS OF CARRYING OUT SUCH RESPONSIBILITY. THE UNION'S PROPOSAL SEEKS TO PRESCRIBE, IN ELABORATE DETAIL, THE SPECIFIC DUTIES THAT PARTICULAR AGENCY PERSONNEL WILL PERFORM IN THE PREPARATION OF THE MANUSCRIPTS. FOR EXAMPLE, THE PROPOSAL PROVIDES THE AUTHOR OF A MANUSCRIPT WILL COMPLETE THE FIRST DRAFT ACCORDING TO THE FORMAT AND STYLE HE OR SHE SELECTS, THEN CHOOSE INDIVIDUAL(S) WHO WILL REVIEW THE MANUSCRIPT AND FINALLY DECIDE WHETHER OR NOT TO REVISE THE MANUSCRIPT ACCORDING TO THE REVIEWER'S COMMENTS. FURTHER, THE AUTHOR MUST REQUEST THE LABORATORY CHIEF TO ORDER THE LINEN TRACINGS AND GLOSSY PRINTS THAT WILL ACCOMPANY THE MANUSCRIPT, WITHIN TWO DAYS OF ITS SUBMISSION TO THE LABORATORY SECRETARY, AND THE LABORATORY CHIEF IS REQUIRED TO APPROVE OR DISAPPROVE THE DRAFT OF THE MANUSCRIPT WITHIN TEN DAYS OF RECEIPT. THE PROPOSAL ALSO SEEKS TO PRESCRIBE THE DUTIES WITH RESPECT TO MANUSCRIPTS OF THE LABORATORY SECRETARY, THE PEER REVIEWERS, THE RESEARCH LEADER, THE TECHNICAL PUBLICATIONS EDITOR, AND THE CENTER DIRECTOR. MOREOVER, SOME OF THESE POSITIONS ARE OUTSIDE THE BARGAINING UNIT. UNDER THE LANGUAGE OF SECTION 7106(A)(2)(B) OF THE STATUTE, IT IS CLEAR THAT MANAGEMENT HAS THE RIGHT TO ASSIGN WORK. /2/ FURTHER, THE RIGHT TO ASSIGN WORK INCLUDES THE DISCRETION AS TO THE PARTICULAR EMPLOYEE TO WHOM THE WORK WILL BE ASSIGNED. /3/ THE UNION'S PROPOSAL, HOWEVER, WOULD PRESCRIBE THE ASSIGNMENT OF SPECIFIC DUTIES TO PARTICULAR EMPLOYEES AND WOULD PRECLUDE MANAGEMENT FROM ASSIGNING THOSE DUTIES TO OTHER EMPLOYEES. /4/ THUS, SINCE THE PROPOSAL WOULD ELIMINATE THE DISCRETION INHERENT IN MANAGEMENT'S RIGHT TO ASSIGN WORK, IT CONFLICTS WITH SECTION 7106(A)(2)(B) OF THE STATUTE. ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THE UNION'S PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SUSTAINED. IN VIEW OF THE AUTHORITY'S DECISION HEREIN, IT IS UNNECESSARY TO REACH THE AGENCY'S ADDITIONAL ALLEGATIONS CONCERNING THE NEGOTIABILITY OF THE UNION'S PROPOSAL. ISSUED, WASHINGTON, D.C., AUGUST 12, 1980 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY APPENDIX A ARTICLE . . . RESEARCH MANUSCRIPTS SECTION 1. THE CENTER AND THE UNION RECOGNIZE THAT THE CAREER DEVELOPMENT OF RESEARCH PERSONNEL DEPENDS ON THE NUMBER OF THEIR PUBLICATIONS WHICH ARE ACCEPTED BY SCIENTIFIC AND TECHNICAL JOURNALS. SUCH PUBLICATIONS ARE IMPORTANT BOTH TO THE EMPLOYEE'S REPUTATION AS A RESEARCH SCIENTIST AND TO THE EMPLOYEE'S CAREER AS A FEDERAL EMPLOYEE. THE CENTER WILL ENCOURAGE ALL PERSONNEL TO WORK TOWARD INCREASING AND IMPROVING THE SCIENTIFIC OUTPUT OF THE CENTER. THE CENTER AGREES THAT RESEARCH MANUSCRIPTS PRODUCED AT THE CENTER WILL BE PROCESSED ACCORDING TO THE PROCEDURES STATED IN SECTION (3) OR (5) OF THIS ARTICLE. SECTION 3. RESEARCH MANUSCRIPTS PREPARED AT ERRC WHICH BEAR THE NAME OF A MEMBER OF THE BARGAINING UNIT WILL BE HANDLED EITHER ACCORDING TO THE PROCEDURE STATED IN THIS SECTION OR ACCORDING TO THAT IN SECTION 5 OF THIS ARTICLE. AUTHOR(S) MAY USE EITHER PROCEDURE BUT NOT BOTH EXCEPT AS STATED IN SUBSECTION C OF SECTION 5 OF THIS ARTICLE. THROUGHOUT THIS SECTION AUTHOR MEANS SENIOR AUTHOR INDIVIDUALLY OR ALL THE AUTHORS OF A MANUSCRIPTS OR ANY ONE AUTHOR ACTING IN PLACE OF THE SENIOR AUTHOR WHICHEVER IS APPROPRIATE. A. AUTHOR, USUALLY SENIOR AUTHOR, COMPLETES THE FIRST DRAFT OF A MANUSCRIPT ACCORDING TO THE FORMAT AND STYLE OF THE JOURNAL CHOSEN BY THE AUTHOR. B. AUTHOR MAY CHOOSE WHETHER OR NOT TO PROVIDE AN INTERPRETIVE SUMMARY AND AN ABSTRACT FOR LIST OF PUBLICATIONS. ALTERNATIVELY, AUTHOR MAY ELECT TO USE THE JOURNAL ABSTRACT AS THE ABSTRACT FOR LIST OF PUBLICATION. C. AUTHOR SENDS THE MANUSCRIPT TO THE APPROPRIATE LABORATORY SECRETARY AND REQUESTS THAT THE LABORATORY CHIEF ORDER FROM THE CENTER PHOTOGRAPHIC LABORATORY WITHIN 2 WORK DAYS LINEN TRACINGS AND GLOSSY PRINTS FOR THE APPROPRIATE FIGURES. D. LABORATORY SECRETARY TYPES THE MANUSCRIPTS OR FORWARDS THE MANUSCRIPT WITHIN 1-1/2 WORK DAYS TO THE STENOGRAPHIC AND TYPING POOL FOR TYPING ACCORDING TO THE PROCEDURES STATED IN SECTION 4. THE TYPED MANUSCRIPT WILL BE RETURNED TO THE AUTHOR ON OR BEFORE THE 12TH WORK DAY AFTER RECEIPT BY THE LABORATORY SECRETARY OR THE TYPING POOL WHICHEVER IS LATER. E. THE AUTHOR CHOOSES TWO PEER REVIEWERS WHO MAY OR MAY NOT BE EMPLOYEES OF THE AGENCY. AUTHOR SENDS TO EACH REVIEWER ONE COPY OF THE MANUSCRIPT. EACH REVIEWER SHOULD INITIAL AND DATE THE COPY RECEIVED. IN CASE OF DISPUTE, THE DATE OF RECEIPT SHALL BE 5 DAYS FROM DATE OF SENDING BY AUTHOR. F. PEER REVIEWERS' COMMENTS MUST BE DATED AND SIGNED AND APPEAR ON ARS FORM 533. THE COMPLETED FORM MUST BE RECEIVED BY THE AUTHOR ON OR BEFORE THE 15TH WORK DAY AFTER DATE OF RECEIPT OF MANUSCRIPT BY REVIEWER. IF FOR ANY REASON A REVIEWER IS UNABLE TO REVIEW A MANUSCRIPT, THE REVIEWER WILL RETURN THE MANUSCRIPT TO THE AUTHOR WITHIN 3 WORK DAYS. OTHERWISE, THE AUTHOR MAY PROCEED WITH THE MANUSCRIPT PROCEDURE WHILE ANOTHER REVIEWER IS SOUGHT. G. AUTHOR MAY REVISE HER/HIS MANUSCRIPT ACCORDING TO REVIEWERS' COMMENTS. AUTHOR'S RESPONSE TO REVIEWERS' COMMENTS MUST BE SIGNED AND DATED AND APPEAR ON OR BE ATTACHED TO THE APPROPRIATE FORMS 533. H. IF REVISED, THE MANUSCRIPT WILL BE SENT TO THE LABORATORY SECRETARY WHO WILL FORWARD THE MANUSCRIPT IMMEDIATELY AS IN SUBSECTION D OF THIS SECTION. OTHERWISE, THE AUTHOR MAY PROCEED TO SUBSECTION I OF THIS SECTION. I. AUTHOR SENDS TO THE APPROPRIATE RESEARCH LEADER ONE COPY OF EACH OF THE FOLLOWING: THE MANUSCRIPT READY TO BE SUBMITTED TO THE JOURNAL SELECTED ARS FORMS 533-- ONE COPY FROM EACH OF TWO PEER REVIEWERS INTERPRETIVE SUMMARY (OPTIONAL) ABSTRACT FOR LIST OF PUBLICATIONS (OPTIONAL) CARCINOGENIC FORM ARS FORM 115 PATENT ADVISOR'S FORM IF THE RESEARCH LEADER IS UNAVAILABLE FOR 4 DAYS OR MORE, AUTHOR MAY SEND THE ENTIRE PACKAGE, LISTED IN THIS SUBSECTION, TO THE APPROPRIATE LABORATORY CHIEF. J. RESEARCH LEADER (OR LABORATORY CHIEF) WILL CONSIDER THE MANUSCRIPT FOR PUBLICATION IN THE JOURNAL SELECTED AND WILL APPROVE OR REJECT WITHIN 10 WORK DAYS. R.L. (OR L.C.) WILL DATE AND INITIAL THE MANUSCRIPT UPON RECEIPT, OTHERWISE THE DATE OF RECEIPT BY R.L. (OR L.C.) WILL BE TAKEN TO BE 7 DAYS AFTER THE DATE OF LAST TYPING BY THE TYPING POOL. IF MANUSCRIPT IS APPROVED, THE R.L. WILL SIGN ITEM 9 OF FORM 115 AND WILL RETURN ALL FORMS TO THE AUTHOR. K. IF THE MANUSCRIPT IS REJECTED, THE RESEARCH LEADER (OR L.C.) WILL RETURN ALL FORMS TO THE AUTHOR TOGETHER WITH A DETAILED, EXPLICIT WRITTEN STATEMENT OF REASONS FOR REJECTION WITHIN THE TIME LIMIT STATED IN SUBSECTION J OF THIS SECTION. AT THE DISCRETION OF THE AUTHOR, THIS REQUIREMENT MAY BE WAIVED. AUTHOR MAY ELECT TO ACCEPT THE REJECTION AND ABANDON THE MANUSCRIPT OR MAY ATTEMPT TO REBUT THE REASONS FOR REJECTION. AUTHOR MAY ELECT TO RESOLVE A DISPUTE THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE. IN THAT CASE, THE GRIEVANCE WILL BE FILED DIRECTLY AT THE SECOND STEP. MEANWHILE, THE AUTHOR MAY CONTINUE PROCESSING THE MANUSCRIPT IN DISPUTE ACCORDING TO THE PROCEDURE IN THIS SECTION. L. AUTHOR SENDS THE MANUSCRIPT AND APPROPRIATE FORMS TO THE LABORATORY SECRETARY WHO WILL FORWARD THE ENTIRE PACKAGE IMMEDIATELY TO THE TECHNICAL PUBLICATIONS EDITOR. THE EDITOR WILL RETURN THE MANUSCRIPT WITH COMMENTS, IF NECESSARY, AND THE FORMS TO THE LABORATORY SECRETARY ON OR BEFORE THE 20TH WORK DAY AFTER RECEIVING THE MANUSCRIPT. LABORATORY SECRETARY WILL NOTIFY THE AUTHOR WHEN THE MANUSCRIPT IS RETURNED BY THE EDITOR. M. AUTHOR MAY REVISE MANUSCRIPT ACCORDING TO EDITOR'S COMMENTS. IF REVISED, THE MANUSCRIPT WILL BE SENT TO THE LABORATORY SECRETARY WHO WILL FORWARD THE MANUSCRIPT TO THE TYPING POOL AS IN SUBSECTION D OF THIS SECTION. N. AUTHOR WILL PROOFREAD THE FINAL DRAFT OF THE MANUSCRIPT. O. AUTHOR WILL SUBMIT FINAL DRAFT OF THE MANUSCRIPT TO THE APPROPRIATE LABORATORY CHIEF. IF THE MANUSCRIPT HAS BEEN APPROVED BY THE RESEARCH LEADER AND THE TECHNICAL PUBLICATIONS EDITOR, THE LABORATORY CHIEF WILL SIGN FORM 115 AND ENTER THE DATE IN ITEM 4. IF THE MANUSCRIPT IS IN DISPUTE, THE LABORATORY CHIEF MAY RULE IN FAVOR OF THE AUTHOR OR MAY WAIT UNTIL THE DISPUTE IS RESOLVED THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE OR MAY FORWARD THE MANUSCRIPT AS IN SUBSECTION P OF THIS SECTION. THE LABORATORY CHIEF WILL SIGN AND DATE FORM 115 PROMPTLY UPON THE RESOLUTION OF ANY DISPUTE IN FAVOR OF THE AUTHOR. P. THE LABORATORY CHIEF WILL FORWARD THE MANUSCRIPT AND FORMS PROMPTLY TO THE CENTER DIRECTOR. Q. THE CENTER DIRECTOR OR A DESIGNEE WILL SIGN AND DATE FORM 115 AND RETURN THE FORM TO THE LABORATORY SECRETARY WITHIN 3 WORK DAYS. IF THE MANUSCRIPT IS IN DISPUTE, THE CENTER DIRECTOR MAY RULE IN FAVOR OF THE AUTHOR OR MAY WAIT UNTIL THE DISPUTE IS RESOLVED THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE. THE CENTER DIRECTOR WILL SIGN AND RETURN FORM 115 PROMPTLY UPON THE RESOLUTION OF ANY DISPUTE IN FAVOR OF THE AUTHOR. R. THE LABORATORY CHIEF WILL SEND THE MANUSCRIPT TOGETHER WITH A LETTER OF TRANSMITTAL TO THE JOURNAL SELECTED. S. AUTHOR WILL RECEIVE COMMENTS FROM THE JOURNAL REVIEWERS. AUTHOR MAY REVISE THE MANUSCRIPT ACCORDING TO THESE COMMENTS AND WILL PREPARE A RESPONSE TO THESE COMMENTS. IF NECESSARY, AUTHOR WILL ASK THE LABORATORY SECRETARY TO FORWARD THE MS TO THE TYPING POOL AS IN SUBSECTION D OF THIS SECTION. T. THE LABORATORY SECRETARY WILL NOTIFY THE AUTHOR UPON THE RETURN OF THE MANUSCRIPT FROM THE TYPING POOL. AUTHOR WILL PROOFREAD AND RETURN THE MANUSCRIPT TO THE JOURNAL. U. IF FOR ANY REASON THE AUTHOR DECIDES TO SELECT A DIFFERENT JOURNAL FOR THE SAME MANUSCRIPT, THEN THOSE STEPS IN THIS PROCEDURE WHICH ARE ALREADY COMPLETED WILL NOT BE REPEATED FOR THAT MANUSCRIPT. V. CRITERIA FOR APPROVAL OF MANUSCRIPTS BY SUPERVISORY RESEARCH SCIENTISTS OR OTHER MANAGEMENT OFFICIALS SHALL INCLUDE REASONABLE CONSIDERATIONS OTHER THAN THE CHOICE BY THE AUTHOR(S) OF SECTION 3 OR 5 OF THIS ARTICLE OR THE STYLE OF WRITING USED BY THE AUTHOR. W. ALL TIME LIMITS IN THIS SECTION MAY BE EXTENDED BY MUTUAL AGREEMENT OF THE PARTIES CONCERNED. SECTION 5. RESEARCH MANUSCRIPTS PREPARED AT ERRC WHICH BEAR THE NAME OF A MEMBER OF THE BARGAINING UNIT WILL BE HANDLED EITHER ACCORDING TO THE PROCEDURE IN THIS SECTION OR ACCORDING TO THAT IN SECTION 3 OF THIS ARTICLE. AUTHOR(S) MAY USE EITHER PROCEDURE BUT NOT BOTH EXCEPT AS STATED IN SUBSECTION C OF THIS SECTION. SUBSECTIONS E, F, G AND H OF SECTION 3 OF THIS ARTICLE ARE EXCLUDED IN THIS SECTION. ALL OTHER SUBSECTIONS OF SECTION 3 OF THIS ARTICLE ARE INCLUDED WITH THE FOLLOWING VARIATIONS. A. AT SUBSECTION I OF SECTION 3 AUTHOR MUST CLEARLY INDICATE THAT THE PROCEDURE OF ARTICLE . . . , SECTION 5 IS TO BE USED AND SHOULD INCLUDE TWO BLANK COPIES OF ARS FORM 533. B. SUBSECTION Q OF SECTION 3 IS MODIFIED. THE CENTER DIRECTOR OR A DESIGNEE WILL INDICATE TENTATIVE APPROVAL OF THE MANUSCRIPT. THE CENTER DIRECTOR WILL DATE AND INITIAL FORM 115 AND RETURN THE FORM TO THE APPROPRIATE LABORATORY SECRETARY. OTHER PROVISIONS OF SUBSECTION Q REMAIN THE SAME. C. SUBSECTION R OF SECTION 3 IS MODIFIED. THE LETTER OF TRANSMITTAL WILL STATE THAT THE MANUSCRIPT IS SUBMITTED TO THE JOURNAL WITH THREE COPIES OF ARS FORM 533. THE LETTER WILL REQUEST THAT THE JOURNAL EDITOR SHOULD RETURN THE MANUSCRIPT AND THE REVIEWERS' COMMENTS AS USUAL TOGETHER WITH AT LEAST TWO COPIES OF FORM 533 SIGNED AND DATED BY THE JOURNAL REVIEWERS. THE LETTER WILL INFORM THE JOURNAL EDITOR THAT ALL DOCUMENTS SHOULD BE RETURNED TO THE LABORATORY CHIEF AND NOT TO THE AUTHOR SO AS TO PRESERVE THE ANONYMITY OF THE REVIEWERS AND THAT THE COMMENTS OF THE JOURNAL REVIEWERS WILL BE RETYPED SEPARATELY FOR USE BY THE AUTHOR. THE LETTER WILL INDICATE THAT THE PURPOSE OF THIS REQUEST IS TO EXPEDITE THE HANDLING OF MANUSCRIPTS WITHIN THE AGENCY. IF THE JOURNAL EDITOR REFUSES TO COMPLY WITH THIS REQUEST, THE AUTHOR MUST REVERT TO THE PROCEDURE IN SECTION 3. OTHER PROVISIONS OF SUBSECTION R REMAIN THE SAME. D. SUBSECTION S OF SECTION 3 IS MODIFIED. AUTHOR WILL RECEIVE COMMENTS OF THE JOURNAL REVIEWERS, WITHOUT THEIR NAMES, FROM THE LABORATORY CHIEF. OTHER PROVISIONS OF SUBSECTION S REMAIN THE SAME. --------------- FOOTNOTES$ --------------- /1/ SECTION 7106(A)(2)(B) OF THE STATUTE PROVIDES, IN PERTINENT PART: SEC. 7106. MANAGEMENT RIGHTS (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY-- . . . . (2) IN ACCORDANCE WITH APPLICABLE LAWS-- . . . . (B) TO ASSIGN WORK, . . . (.) /2/ ASSOCIATION OF CIVILIAN TECHNICIANS AND STATE OF GEORGIA NATIONAL GUARD, 2 FLRA NO. 75 (JAN. 25, 1980), AT 2 OF THE DECISION. /3/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 77 (JAN. 31, 1980), AT 28 OF THE DECISION. /4/ ID. AT 20 OF THE DECISION.